Happy Almost New Year!

I thought I would close out the year with an annual look back to what we have accomplished in the world of wetlands. This year has been an active one with regards to wetlands. These are a few of the news stories we had covered this year.

First, the year started out with a US Army Corps of Engineers appeal to a Federal Judge’s ruling in Florida. The issue was what is considered “normal circumstances” and the use of the “Stockton” rule. The case involved a wetland site in Florida that had been deemed a prior converted (PC) wetland as a result of farming activities. Pumps were used to drain the site. Under the Corps “Stockton” rule, if the site was no-longer agricultural in nature and the pumps were turned off, the Corps would assess the site employing the new “normal circumstances.” In 2010 the Judge had determined that this was “rule making in the field” and that the Corps could not make a wetlands call on the site due to its PC status. In January the Corps unsuccessfully appealed this decision.

In March 2011 the US Army Corps of Engineers released the draft Nationwide permit updates. The current Nationwide permits are set to expire the day after St. Patrick’s Day 2012 (That would be on March 18 for the non-Irish). There are a few tweaks including the reissuance of NW21 for surface coal mining. We also have two new fun ones. Nationwide A & B. These are for alternative energy projects like offshore wind farms.

In April, President Obama announced his new National Clean Water Framework. This includes action to modernize water resources guidelines, and update Federal guidance on where the Clean Water Act applies nationwide. The draft guidance from U.S. EPA and the U.S. Army Corps of Engineers will protect waters that many communities depend upon for drinking, swimming, and fishing, and provide clearer, more predictable guidelines for determining which water bodies are protected from pollution under the Clean Water Act. The biggest issue to come out of this is the adoption of the Supreme Court Rapanos mess into the Clean Water Act.

Shortly after the Obama announcement was the Barrasso-Heller amendment to the 2012 Energy and Water Appropriations Bill. The short version is that the amendment says that the Corps cannot change the definition of what is a waters of the US by regulation. This is a very partisan issue and each side is clearly lined up behind this position. To put this simply the Democrats are for a regulation that defines what a waters of the US is. The Republicans would prefer that this be a legislative decision. The Barrasso-Heller amendment strips away the funds to make regulation changes by the Corps impossible.

We also have a new Supreme Court case to watch in January. The case involves a house lot in Idaho. The EPA has determined that the lot is a wetland. The landowners dispute this. Apparently, you are not allowed to dispute the EPA. The case is one involving due process and the Supreme Court has agreed to hear the case. This one has huge implications for all you wetland delineators out there.

The last “big” story of the year is what ever happened to the Gulf? In writing this I had to dig to even find a decent news story about any wetland restoration efforts being done. Mostly, what I found were articles about who is enjoined in the case, who is not and how much money might BP have to pay. There is a new BP ad campaign telling us to come back to the Gulf. Everything is great. The water is clean and the seafood is delicious. If you watch the latest ad the funny thing is at the 48 second mark you can see yellow protester signs in the background.

Senator Mary Landrieu (D-LA) has proposed a wetland cleanup bill. The 28-million dollar proposal is for the construction of a new 104-acre marsh and an 850-acre oyster bed rehabilitation. This is a great start, but to be frank it’s not all that much of an area when you consider what has been lost.

Next year should be a busy one for all of us. The natural gas industry is keeping many wetland delineators very busy in the northeast. Ohio looks like it will be the next big exploration area with North Carolina shortly behind it.

Have a Happy New Year and best wishes for a successful 2012!

All the best,

– Marc

2012 Wetland Status & Trends

Please note that this information does not constitute legal advice and is meant as informational only. It is strongly recommended that you seek the services of a competent environmental attorney for the interpretation of any legal or regulatory matter presented herein.